By Eric B. Meyer
Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal (Jamal V. Saks).
Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act of 1964 by discriminating against her because she is transsexual.
Saks claims that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.
Writing for Slate.com, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Stern notes that Title VII forbids sexual stereotyping.
For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking,” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.
So, Mr. Stern is correct that sex stereotyping is unlawful. But, he also concedes that the Supreme Court has not gone the next step and banned discrimination based on transgender status. Still, he implies that, even without the Supreme Court’s imprimatur, the law overwhelmingly favors Ms. Jamal.
It doesn’t. (Well, many local and state laws do, but not federally…)
Indeed, in its motion to dismiss, Saks cites cases from three federal circuits, plus a recent decision from a Texas federal court — where the Saks case is now pending — which held that Title VII does not prohibit transgender discrimination. So, if this case is viewed as one of pure transgender discrimination, Ms. Jamal will lose.
[Note: the Complaint does contain allegations of sex stereotyping (Ms. Jamal was allegedly asked “to change her appearance to a more masculine one”) and a hostile work environment (allegations of violence based on gender)]
At some point, either the Supreme Court is going to rule on this issue, or Congress will amend the law to clarify that transgender discrimination is (or is not) covered under Title VII.
In the meantime, a few things to note about the Saks case:
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.